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State v. McNeil-Thomas

Supreme Court of New Jersey

June 18, 2019

State of New Jersey, Plaintiff-Appellant,
v.
Rasul McNeil-Thomas, Defendant-Respondent.

          Argued Decided January 3, 2019

          On certification to the Superior Court, Appellate Division.

          Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney; Frank J. Ducoat, of counsel and on the briefs).

          James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; James K. Smith, Jr., of counsel and on the briefs).

          Adam D. Klein, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Adam D. Klein, of counsel and on the brief).

          SOLOMON, J., writing for the Court.

         In May 2011, an off-duty Newark police officer was shot and killed in a restaurant. Defendant Rasul McNeil-Thomas was convicted by a jury of shooting the officer, among other crimes. In this appeal, the Court considers the Appellate Division's reversal of defendant's convictions upon its findings that a brief segment of video surveillance played during summation was not admitted into evidence at trial and that, during summation, the prosecutor improperly linked defendant to one of the vehicles shown in the video.

         The Texas Fried Chicken and Pizza Restaurant, known as the "chicken shack," was at the intersection of Lyons Avenue and Clinton Place in Newark. As Officer William Johnson waited at the restaurant a silver Chevrolet Malibu slowly passed the chicken shack, as captured by the restaurant's exterior camera. Several rounds were fired from the front passenger window of the car into the restaurant. One of those bullets struck and killed Officer Johnson. Three others were wounded. The Malibu sped off.

         Witnesses linked defendant to the Malibu, which had been carjacked from the driveway of a home near the restaurant. The carjacking victim identified defendant from a photo array as one of the two men who carjacked the Malibu. Two witnesses who were at the murder scene also identified defendant.

         Investigating officers learned that, about an hour before the shooting, a street brawl took place in front of defendant's home between defendant and his family and a group of young women, including three later seen in the restaurant at the time of the shooting. According to the State, defendant's motive for the shooting was retribution.

         Defendant's neighbor, who called 9-1-1 to report the brawl, told police she saw defendant and his stepfather leave together in a blue pickup truck shortly after the fight. The neighbor then saw both men return home, but defendant was in a black sedan --which she described as "like" a Cadillac CTS -- with three other individuals, while the stepfather returned alone in the blue pickup truck. The neighbor also stated that defendant and one of the others got back into the black sedan and drove off, following the stepfather in the blue pickup truck. The police obtained a search warrant and seized and photographed a blue Ford pickup truck belonging to defendant's stepfather.

         The police also discovered that surveillance video from the scene had captured a pickup truck pass the restaurant shortly before the shooting, followed by a black sedan. Investigators developed the theory that defendant and his stepfather had driven by the chicken shack in search of the young women from the brawl and that, finding them there, defendant carjacked the Malibu and returned to shoot them.

         Defendant was arrested the day after the shooting for carjacking the silver Malibu. He was later indicted for the murder of Officer Johnson, several attempted murders and aggravated assaults of other individuals, the carjacking, and other related offenses. A month-long trial followed, during which evidence offered by the State included the video surveillance footage from the restaurant's security cameras and digital stills created from the video footage, video surveillance footage from two nearby establishments, the testimony of defendant's neighbor who called 9-1-1, and the photos of the blue pickup truck processed by police.

         Defendant's neighbor confirmed during her testimony that the pickup truck depicted in the police photos was the same truck she saw leaving defendant's home followed by the black sedan shortly before the shooting. On cross-examination, defense counsel vigorously challenged the neighbor's recollection.

         The State also offered into evidence defendant's sworn statement, taken by police after his arrest, that he and his stepfather left the house together and traveled down Lyons Avenue in a dark green or dark blue Ford pickup truck around the time of the shooting. The route defendant described would have taken them past the chicken shack.

         After the State called the owner of the chicken shack as its first witness to authenticate the restaurant's surveillance footage, defense counsel requested a sidebar, during which he stated that he "definitely [didn't] have any objections . . . to any of the portions they are going to play," but recognized that "the video itself contains a lot of material." Defense counsel stated that he "want[ed] to reserve, just for later" an objection to irrelevant footage "from like an hour before." The court interpreted defense counsel's request as an objection to "[d]owntime" and "extraneous stuff," but warned that once the video is played for the jury "[y]ou can't unring the bell." Defense counsel acknowledged that "everything played before the jury in the courtroom is in evidence, but we can talk about the scope later." The court admitted the restaurant's surveillance camera footage in its entirety into evidence "subject to sidebar."

         Later, while the lead detective was on the stand, the State played the footage captured by the restaurant's security camera beginning forty-six seconds before a pickup truck followed by a sedan came into view. Seventy-six seconds after that video started, the State fast forwarded to about a minute before the shooting. Defense counsel did not object when the State played the videotape.

         During defense counsel's summation, he reminded the jury of the neighbor's testimony that the stepfather left first in the pickup truck, while defendant followed in a black Cadillac. He also asked the jury to discredit her testimony because "she [didn't] see all the people who got out of the black car."

         During the State's closing argument, the prosecutor played the video footage captured by the chicken shack's exterior surveillance camera. The prosecutor asked the jury to infer that the sedan shown in the video was the sedan described by the concerned neighbor as "like" a black Cadillac CTS, stating, "Cadillac CTS. Cadillac CTS, black Cadillac CTS." He also asserted that the pickup truck shown in the video traveling in front of the sedan was the same truck that the neighbor testified she saw defendant's stepfather driving on the night of the shooting. Next, to show the jury the direction the two vehicles were heading, the prosecutor played a brief excerpt of videotape obtained from a restaurant one block west from the chicken shack, on the same side of Lyons Avenue, that showed both vehicles. The video from a nearby bar showed only a black sedan traveling down another street after it stopped following the blue pickup truck.

         Following summations, defense counsel made a motion for a mistrial claiming the prosecutor "played a piece of tape" not entered into evidence and "testified" about it. The trial judge denied the motion, finding the footage was admitted into evidence and the prosecutor's remarks were fair comment on the evidence.

         During deliberations, the jury sent a note stating, "We would like to see; the tape before the shooting which shows the blue truck and the black car. It was only shown by the prosecutor at the closing statement. Can/may we see this again? Can it count as evidence?" Over defense counsel's objection, the judge determined that the videos were in evidence. Both videos were then played for the jury in open court.

         The jury found defendant guilty of first-degree aggravated manslaughter for the death of Officer Johnson, as well as other offenses, and sentenced defendant.

         The Appellate Division reversed defendant's convictions and remanded for a new trial, finding that videotape segments the prosecutor played during his closing remarks were not admitted into evidence. According to the appellate court, that alleged error, coupled with the prosecutor's improper comments linking defendant to the vehicles shown in those video segments, deprived defendant of a fair trial. In light of that holding, the Appellate Division did not consider sentencing arguments raised by defendant.

         The Court granted the State's petition for certification. 234 N.J. 200 (2018).

         HELD: The Court defers to the trial judge's determination that the disputed footage was played for the jury during the State's case-in-chief and notes that defense counsel consented to the admission of the surveillance footage depicting the moments surrounding the shooting, including the video segment at issue. The court did not abuse its discretion in permitting the prosecutor to play the video segment during his closing remarks, and the prosecutor's comments were reasonable and fair inferences supported by the evidence presented at trial.

         1. The Court first considers the contention that the five-second video segment obtained from the chicken shack's exterior surveillance camera was never admitted into evidence. A careful review of the trial transcript reveals that the court admitted the chicken shack's surveillance video in its entirety "subject to sidebar." At sidebar, defense counsel preserved an objection to the admission of extraneous footage "from like an hour before." Counsel's preserved objection had nothing to do with whether the disputed five-second segment was ever played for the jury. The trial judge made a factual determination that the disputed five-second segment of tape was played by the State during its case-in-chief, and the timestamped version of the lead detective's testimony supports that decision.

         Reliance on the jury's note to support the claim that the disputed video segment was never played during trial is an improper invitation to engage in speculation about a jury's deliberative process. There was sufficient, credible evidence in the record for the court to determine that the disputed snippet of tape was played for the jury and entered into evidence, and the court did not abuse its discretion in permitting the prosecutor to play the chicken shack video segment during his closing remarks. Further, the video clip from a nearby business, which was played for the jury without objection, showed a sedan following a pickup truck only seconds after the two vehicles would have passed the chicken shack. (pp. 19-22)

         2. The Court next determines whether it was proper for the prosecutor to invite the jury to infer that the five-second segment showed defendant in a black sedan following his stepfather's pickup truck driving by the restaurant shortly before the shooting. Consistent with their obligation to seek justice, prosecutors may not advance improper arguments. Nevertheless, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments and are therefore afforded considerable leeway in closing arguments. As long as the prosecutor stays within the evidence and the legitimate inferences therefrom, there is no error. Furthermore, even when a prosecutor's remarks stray over the line of permissible commentary, to warrant the remedy of a new trial, there must have been some degree of possibility that the comments led to an unjust result. (pp. 22-24)

         3. Because the prosecutor's alleged improprieties here involve comments made about the sedan following the pickup truck shown on the videotape driving by the restaurant about four minutes before the shooting, the Court reviews in detail the State's proofs about those two vehicles and defense counsel's response. (pp. 25-27)

          4. Defendant asserts that the State unfairly surprised the defense by associating defendant with the black sedan following the pickup truck as it passed the chicken shack about four minutes before the shooting. But defense counsel's vigorous cross-examination of the neighbor and his plea during closing that the jury disregard her testimony about the black sedan demonstrate that the defense was aware of the video segment and its import. By his closing, the prosecutor here marshalled the police photos of the stepfather's pickup truck, the video surveillance footage, the neighbor's testimony, and defendant's own sworn statement -- that he traveled down Lyons Avenue with his stepfather in a Ford pickup truck around the time of the shooting -- to provide context to the jury. In doing so, he suggested that defendant was "eerily creeping" by the chicken shack about four minutes before the shooting to verify that the young women who assaulted his family were at the restaurant. After asking the jury to compare the paused videotaped image of the pickup truck with the truck depicted in the police photos, the prosecutor then pressed play; as the black sedan entered the frame, he stated, "Cadillac CTS, black Cadillac CTS." The prosecutor here permissibly sought to connect interrelated pieces; he did not improperly seek to provide some of the missing pieces. The prosecutor's comments during his summation regarding the two vehicles shown in the videotape were reasonable and fair inferences supported by the evidence at trial and fell within the boundaries of permissibly forceful advocacy. (pp. 27-31)

         The judgment of the Appellate Division is REVERSED, defendant's convictions are REINSTATED, and the matter is REMANDED to the Appellate Division for further proceedings.

          JUSTICE LaVECCHIA, dissenting, stresses that although prosecutors may piece together evidence during summation, they may not create pieces of evidence, and expresses the view that, in this trial, the assistant prosecutor crossed that line. Justice LaVecchia explains that in closing argument, the prosecutor declared -- no fewer than six times -- that the video depicted a black Cadillac CTS passing the restaurant before the shooting but that no witness testified to that key fact. Justice LaVecchia notes that the neighbor testified that she had seen defendant drive a black, four-door car that looked like a Cadillac but could not and did not identify it as a CTS. Nor did the State call a qualified lay or expert witness who might have offered testimony about the model of the cars in the short, grainy video clips. Justice LaVecchia is not convinced, beyond a reasonable doubt, that the outcome of the trial would have been the same without the prosecutor's testimony regarding the video during summation.

          JUSTICES PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON'S opinion. JUSTICE LaVECCHIA filed a dissenting opinion, in which CHIEF JUSTICE RABNER and JUSTICE ALBIN join.

          OPINION

          SOLOMON JUSTICE

         On a night in May 2011, an off-duty Newark police officer was shot and killed in a restaurant while waiting to purchase a slice of pizza for his dinner. Defendant Rasul McNeil-Thomas was convicted by a jury of shooting the officer, among other crimes. In this appeal, we consider the Appellate Division's reversal of defendant's convictions upon its findings that a brief segment of video surveillance played during summation was not admitted into evidence at trial and that, during summation, the prosecutor improperly linked defendant to one of the vehicles shown in the video segment.

         First, we disagree that the video was not admitted into evidence. We defer to the trial judge's determination that the disputed footage was played for the jury during the State's case-in-chief. And although defense counsel preserved an objection to the admission of extraneous surveillance footage, a careful review of the trial transcript shows that defense counsel consented to the admission of the surveillance footage depicting the moments surrounding the shooting, including the video segment at issue. We therefore find the court did not abuse its discretion in permitting the prosecutor to play the video segment during his closing remarks.

          Next, we consider whether it was proper for the prosecutor to invite the jury to infer that the video segment showed defendant in one of the vehicles, following his stepfather in another, driving by the restaurant shortly before the shooting. We conclude that the prosecutor's comments were reasonable and fair inferences supported by the evidence presented at trial.

         We therefore reverse the judgment of the Appellate Division, reinstate defendant's convictions, and remand for consideration of defendant's sentencing arguments.

         I.

         A.

         The trial transcript reveals that on a night in May 2011, William Johnson, an off-duty Newark police officer, waited for a slice of pizza at the Texas Fried Chicken and Pizza Restaurant, known as the "chicken shack." The restaurant was located at the intersection of Lyons Avenue and Clinton Place in Newark. As Officer Johnson waited at the restaurant along with several others -- including a five-month-old baby -- a silver Chevrolet Malibu slowly passed the chicken shack, as captured by the restaurant's exterior surveillance camera.

         The video showed a distinct muzzle flash emanating from the front passenger window of the car as several rounds were fired into the restaurant. One of those bullets struck Officer Johnson in the chest, killing him. Three other patrons were wounded. The silver Malibu sped off, turning left on Lyons Avenue.

         Surveillance video obtained from the nearby Bobby's Restaurant showed the silver Malibu turn off of Lyons Avenue, headed in the direction of where it was later found abandoned -- four blocks from the scene of the shooting and around the corner from defendant's residence. Among other items of evidential value, police recovered five spent shell casings from inside the silver Malibu and three shell casings from outside the restaurant. Ballistics analysis later established that the same nine-millimeter handgun fired three of the five shell casings found inside the car and the three shell casings recovered from outside of the restaurant.

         Surveillance video obtained from St. Peter's Park, located between where the Malibu was abandoned and defendant's residence, showed two black males wearing hoodies walking through the park toward defendant's residence immediately after the shooting. A K-9 unit later tracked a scent from the driver's seat of the Malibu through the park and directly past the front of defendant's house before losing the scent near his home.

         Witnesses also linked defendant to the Malibu, which had been carjacked from the driveway of a home located on Clinton Place, only a block-and-a-half away from the restaurant.

         First, the carjacking victim described how she was sitting in the front passenger seat of her boyfriend's idling silver Malibu when a man who was wearing "some type of sweater or something" ordered her out of the car by tapping his gun on the driver's side window. As she exited the car, she saw a second man standing about a foot-and-a-half away from her wearing a hoodie; she could see the outline of a gun in his hoodie. By the time she reached the steps of her boyfriend's home, she heard the car speeding out of the driveway. Seconds later, she heard the sound of gunshots coming from the chicken shack down the block. She was shown a photo array about seven hours after the incident but was unable to make an identification. Later that afternoon, police showed her the same photo lineup, and the carjacking victim identified defendant as the man wearing a hoodie.

         Two witnesses who were at the murder scene also identified defendant. The first witness, who was standing directly outside of the chicken shack as the shots were fired from the Malibu, identified defendant as one of the shooters from a photo array about three months after the murder. At trial, she explained to the jury that initially she did not want to get involved with the investigation because she was too scared to come forward. It was also revealed on direct examination that she used one "deck"[1] of heroin at noon on the day of the murder, but she testified that she was not under the influence at the time of the shooting, more than nine hours later.

         The second witness, who knew defendant and his family, was standing in the front doorway of the restaurant and facing the street as the Malibu approached. She told investigators in a videotaped statement just hours after the incident that she "locked eyes" with one of the shooters, whom she identified as defendant. She also identified defendant through a photo array later that same night. At trial, however, the witness recanted while on the stand. A Gross[2] hearing was held, during which the State called the two investigators who conducted the videotaped interview of the witness on the night of the murder. The court found that the witness "told the truth at the time" she provided her videotaped statement, which was then admitted into evidence and played for the jury.

          Investigating officers learned that, about an hour before the shooting, a street brawl took place in front of defendant's home between defendant and his family and a group of young women, including three later seen in the restaurant at the time of the shooting. According to the State, defendant's motive for the shooting was retribution for that earlier assault against defendant and his family.

         Defendant's neighbor, who called 9-1-1 to report the street brawl, told police she saw defendant and his stepfather leave defendant's home together in a blue pickup truck shortly after the fight was over. According to the neighbor, she then saw both men return home, but defendant was in a black sedan -- which she described as "like" a Cadillac CTS -- with three other individuals, while the stepfather returned alone in the blue pickup truck. The neighbor also stated that, after a brief discussion outside of defendant's residence, defendant and one of the others got back into the black sedan and drove off, following the stepfather in the blue pickup truck. As part of their investigation, the police obtained a search warrant and seized, processed, and photographed a blue 1993 Ford pickup truck belonging to defendant's stepfather, with custom chrome fender flares and a damaged rear bumper.

         Significantly, the police also discovered that surveillance video from the scene had captured a pickup truck pass the restaurant shortly before the shooting, followed by a black sedan. Investigators developed the theory that defendant and his stepfather had driven by the chicken shack in search of the young women from the brawl and that, finding them there, defendant carjacked the Malibu and returned to shoot them.

         B.

         Defendant was arrested the day after the shooting for carjacking the silver Malibu. He was later indicted for the murder of Officer Johnson, several attempted murders and aggravated assaults of other individuals, the carjacking, and other related conspiracy and weapons offenses.

         A month-long trial followed, during which evidence offered by the State included the video surveillance footage from the restaurant's security cameras and digital stills created from the video footage, video surveillance footage from two nearby establishments, the testimony of defendant's neighbor who called 9-1-1, and the photos of the blue pickup truck processed by police.

         Defendant's neighbor confirmed during her testimony that the pickup truck depicted in the police photos was the same truck she saw leaving defendant's home followed by the black sedan shortly before the shooting. On cross-examination, defense counsel vigorously challenged the neighbor's recollection of the vehicular traffic in front of her home that evening. Specifically, he questioned her extensively on the order in which the pickup truck and the sedan left the home, as well as her ability to recall who was in the black sedan.

         The State also offered into evidence defendant's sworn statement taken by police after his arrest. Although he could not recall the exact time, defendant stated that he and his stepfather left the house together and traveled down Lyons Avenue in a dark green or dark blue Ford pickup truck around the time of the shooting to "look for music."[3] The route defendant described would have taken them past the chicken shack.

         After the State called the owner of the chicken shack as its first witness to authenticate the restaurant's surveillance footage, defense counsel requested a sidebar, during which he stated that he "definitely [didn't] have any objections . . . to any of the portions they are going to play," but recognized that "the video itself contains a lot of material." Defense counsel stated that he "want[ed] to reserve, just for later" an objection to irrelevant footage "from like an hour before." The court interpreted defense counsel's request as an objection to "[d]owntime" and "extraneous stuff," but warned that once the video is played for the jury "[y]ou can't unring the bell." Defense counsel acknowledged that "everything played before the jury in the courtroom is in evidence, but we can talk about the scope later." The court admitted the restaurant's surveillance camera footage in its entirety into evidence "subject to sidebar."

         Later, while the lead detective assigned to the investigation was on the witness stand, the State played the footage captured by the restaurant's exterior security camera beginning forty-six seconds before a pickup truck followed by a sedan came into view. While the video played, the detective explained to the jury how it showed cars traveling on "Clinton Place north," intersecting with Lyons Avenue going "east and west," and that he "spent a significant amount of time trying to figure out about the cars that were coming in and out of this location." Seventy-six seconds after that video segment started, the State fast forwarded to about a minute before the shooting.[4] Notably, defense counsel did not object when the State played the videotape showing vehicular traffic, including a pickup truck followed by a sedan, passing by the restaurant about four minutes before the shooting.

         C.

         During defense counsel's summation, he reminded the jury of the neighbor's testimony that the stepfather left first in the pickup truck, while defendant followed in a black Cadillac. He also asked the jury to discredit her testimony because "she [didn't] see all the people who got out of the black car."

         During the State's closing argument, the prosecutor played the video footage captured by the chicken shack's exterior surveillance camera, along with videotape from two nearby businesses: Bobby's Restaurant and the Oasis Bar.[5] The State first played the chicken shack video, which showed cars driving through the intersection of Lyons Avenue and Clinton Place. The prosecutor paused the tape when a pickup truck entered the video frame. He then showed the photos depicting the blue pickup truck processed by the police next to the image of the pickup truck on the paused videotape so the jury could compare the two. He asked the jurors:

What do you see? You could see a blue pickup truck. You could see a blue pickup truck. You could see the same headlights. You could see the same headlights.

         You can't see the license plate, but if you look in the light, you know what you can see? You can see the defect in the bumper. There's a defect in the bumper. The bumper had been hit. The bumper had been hit and you can see the car eerily creeping up Clinton Place going northbound right by the chicken shack, about three minutes and 46 seconds before the bullets were fired.

         The prosecutor then resumed playing the chicken shack video, and a sedan entered the frame, following the pickup truck. The prosecutor asked the jury to infer that the sedan shown in the video was the sedan described by the concerned neighbor as "like" a black Cadillac CTS, stating, "Cadillac CTS. Cadillac CTS, black Cadillac CTS." He also asserted that the pickup truck shown in the video traveling in front of the sedan was the same blue, eighteen-year-old truck that the neighbor testified she saw defendant's stepfather driving on the night of the ...


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